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4.2.12
WC: 191694

Before we filed our petition, I had received several phone calls from anti-capital punishment lawyers imploring me not to file a petition for certiorari in the Tison case. "Count the noses," one of them warned. "You may not have five any more." He urged me to leave well enough alone: "We have Enmund. Most courts will follow Enmund and reverse felony-murder death sentences. But if the Supremes take your case and reverse or limit Enmund, people will die because of you. You have to go by the numbers."

I understood his reference to "the numbers" as meaning two different things: First the numbers on the Supreme Court, which now might be 5-4 against us. And the large number of condemned inmates who faced execution on a theory similar to that which had lead the sentencing judge in Arizona to sentence the Tison brothers to die even though they had not killed the Lyons family or intended their death.

I respected the insights and judgments of the callers, but I had two clients on death row. I was their lawyer, not the lawyer for the many other death row inmates whose fates could be adversely determined by a negative ruling in our case. I cared deeply about the other inmates. I cared deeply about every inmate facing the death penalty. I cared deeply about the issue itself. But I could not allow these strong feelings to influence my decision regarding my clients. I was the only person between them and the canisters of death that stood ready to end their young lives. At that moment in time, I was not a "capital punishment lawyer" or a "cause" lawyer of any kind. I was Ricky and Raymond Tison's lawyer. I had to put case before cause, client before campaign, the Tison brothers before the others on death row. It was an excruciating conflict, but not a difficult legal or ethical decision.

I decided to file a petition for certiorari to the Supreme Court. Our hope was that the justices would not want to hear full argument on an issue they had so recently considered: namely the constitutionality of the death penalty for defendants—like Enmund—who had not been the actual triggerman in a crime that had resulted in the death of the victim. We hoped the justices would simply "remand the case for reconsideration in light of Enmund." In other words, that they would send the case back to the Arizona courts so that those judges could apply the Enmund precedent to the facts of the Tison case. That would have been the best of all possible worlds. The Court would have reaffirmed Enmund as the binding precedent and sent a strong message to the state courts to be sure to follow that precedent. And it would have saved the lives of Ricky and Raymond. But it was not to be. To our disappointment and worry, the justices granted review and set the case down for full briefing and argument.

Generally, lawyers are ecstatic when the High Court grants review of one of their cases. It means that they will have the privilege of arguing before the Supreme Court—a rare honor that few lawyers ever experience. It also means they will have an opportunity to influence the development of constitutional law—a knife that cuts both ways, since the influence may be positive or negative.

In this case, I was far from ecstatic, since the granting of review so soon after the divided decision in Enmund signaled a desire on the part of at least some of the justices to reconsider and perhaps reverse or limit Enmund. The last thing I wanted to be was the vehicle by which the justices

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